COURT FILE NO.: 17-CV-570518

DATE: 20180601

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: LOFRANCO SABETTI DALY Applicant

AND:

AZEVEDO & NELSON AND WILLIAM PEREIRA, AS THE ADMINISTRATOR OF THE ESTATE OF ABILIO PEREIRA, DECEASED Respondent

BEFORE: JUSTICE FAVREAU

COUNSEL: Michael Ditkofsky for the applicant Lofranco Sabetti Daly Rebecca Nelson for the respondent Azevedo & Nelson Spencer Toole for the respondent, William Pereira

HEARD: December 14, 2017 with additional written submissions received on March 27, 2018 and April 6, 2018

ENDORSEMENT

Introduction

[1] The applicant, Lofranco Sabetti Daly, seeks a declaration that it is entitled to $32,100 held in trust by the respondent Azevedo & Nelson (the "Azevedo Firm"), which it says is owed for legal services provided to Abilio Pereira (“Mr. Pereira”). The respondent, William Pereira as the Administrator of the Estate of Abilio Pereira (the "Estate"), says that the Estate is entitled to the moneys.

[2] For the reasons that follow, I make a declaration that the applicant is entitled to payment of the moneys held in trust, subject to an assessment of the account. While the time for an assessment under the Solicitor’s Act, R.S.O. 1990, c. S.15, has passed, there are special circumstances in this case warranting an extension.

Procedural history

[3] Following the hearing of the application, the parties sent me a copy of the Divisional Court’s decision in Cozzi v. Sidiropoulos, 2018 ONSC 309 (Div. Ct.), after which I requested and received written submissions from the parties on its relevance to this case and on whether the funds held in trust are subject to a solicitor’s lien or charging order.

Facts giving rise to the application

[4] Abilio Pereira ("Mr. Pereira") was involved in a motor vehicle accident on June 7, 1990.

[5] Initially, Mr. Pereira retained the firm of Acri, MacPherson, Fader & Baldock (the "Acri Firm") to commence an action on his behalf. The Acri Firm issued a statement of claim on June 22, 1992.

[6] In May 1993, Mr. Pereira discharged the Acri Firm, and retained the law firm of Fireman Lofranco to represent him. (According to the affidavit sworn by Rocco Lofranco in support of the application, Fireman Lofranco is the predecessor to Lofranco Sabetti and Daly. Throughout these reasons, I refer to Mr. Lofranco’s firms as the “Lofranco Firm”).

[7] The Lofranco Firm represented Mr. Pereira from 1993 to 2002. The evidence on the application suggests that, while Mr. Lofranco had some involvement with Mr. Pereira’s file, most of the work was performed by Jeremy Solomon, an associate with the firm at the time.

[8] In 2002, Mr. Pereira discharged the Lofranco Firm and retained the Azevedo Firm to take carriage of his claim.

[9] On August 14, 2002, around the time Mr. Pereira retained the Azevedo Firm, Antonio Azevedo, a partner with the Azevedo Firm, wrote to Mr. Lofranco and undertook "to protect your reasonable account, subject to the client's right to assess, from the proceeds of any settlement or judgment".

[10] In the context of this application, Mr. Azevedo swore an affidavit in which he stated that he does not have a specific recollection of obtaining instructions from Mr. Pereira to provide this undertaking. However, his evidence is that his practice is to always discuss such matters with clients:

I did not record our discussion in detail, aside from noting that we spoke about transferring the file from Lofranco. Although I do not have specific recollection of my conversation with Mr. Pereira, I have no doubt that I explained the mechanism of transferring the file from a previous law firm to our office.

I have never met with a client who is transferring a file to our firm from another firm who hasn't asked me how fees work. Most often they believe that they have to pay the previous lawyer's fees before they can transfer the file and I always explain that if I undertake to protect the previous lawyer's reasonable account they won't have to pay fees up front. I also advise all clients that the practice amongst the personal injury bar is for the new lawyer to pay the outstanding disbursements, for which the client is ultimately responsible when the case resolves. I believe that I advised Mr. Lofranco accordingly.

I explain to the client that although the undertaking is made by me, I provide this undertaking so client need not pay the previous lawyer's file [sic] to secure transfer of the file. The client remains responsible for paying his previous lawyer's account. I believe that I advised Mr. Pereira accordingly.

[11] On December 2, 2002, the Lofranco Firm sent Mr. Pereira's file to the Azevedo Firm, along with an account for $2,330.71 for disbursements. The letter indicated that the fee account would be sent shortly.

[12] In his affidavit, Mr. Lofranco states that the fee account was sent to the Azevedo Firm on January 23, 2003, which is the date on the face of the account. However, Mr. Lofranco’s evidence is based on his review of the file and not on his direct recollection. The account was signed by Mr. Solomon, and there is no evidence that it was actually sent to the Azevedo Firm on that date. In contrast, the Azevedo Firm's evidence is that it did not receive the account until March 28, 2006. The account was for $32,100, inclusive of GST.

[13] In his affidavit, Mr. Lofranco also states that his firm sent a further disbursements account for the amount $1,604.43 dated January 23, 2003. The Azevedo Firm's evidence on the application is that it never received this account.

[14] On March 28, 2006, Mr. Pereira's motor vehicle action was settled at a mediation.

[15] In accordance with the undertaking given to the Lofranco Firm, the Azevedo Firm held $32,100 in its trust account in relation to the Lofranco Firm's account. The Azevedo Firm’s evidence is that it obtained instructions from Mr. Pereira to hold this amount in trust.

[16] On April 3, 2006, the Azevedo Firm wrote to the Lofranco Firm requesting dockets in support of the account. In the letter, the Azevedo Firm noted that the account "seems rather excessive given the state of the file when it was received by our office. I note that you billed for discoveries, which were conducted by our office…" Despite this request, there is no evidence on this application that dockets were provided and no dockets have been included in evidence on the application.

[17] On April 13, 2006, the Azevedo Firm paid the Lofranco Firm $2,330.71 for the December 2, 2002 disbursements account.

[18] Around that time, Mr. Pereira retained a separate lawyer, Martin Bufton, to assess the account. In May 2006, there were communications between Mr. Solomon and Mr. Bufton, but the account was never assessed nor was the issue resolved.

[19] Mr. Pereira passed away in September of 2012.

[20] Following Mr. Pereira's death, the Estate became aware that the Azevedo Firm was still holding $32,100 in trust.

[21] In September, 2013, on the instructions of the Estate, a law clerk with the Azevedo Firm contacted Mr. Lofranco to attempt to negotiate a resolution of the outstanding account. Telephone messages were left on three separate occasions. Similarly, William Pereira, Mr. Pereira's son and the trustee of the Estate, left two messages for Mr. Lofranco. The direct evidence of both the law clerk and William Pereira is that they did not receive any responses to their messages

[22] The Lofranco Firm did not take any steps to communicate with the Azevedo Firm between 2006 and 2015 to request payment of the moneys held in trust.

[23] The Lofranco Firm was contacted again by William Pereira in June of 2015. It was not until the fall of 2015 that someone from Mr. Lofranco's office contacted the Azevedo Firm about the account, after which Mr. Lofranco demanded payment of the $32,100.

[24] It appears that attempts were made to resolve the issues between the Estate and the applicant without success.

[25] The application was commenced on February 28, 2017.

Positions of the parties

[26] The applicant claims that it is entitled to payment of the moneys held in trust by the Azevedo Firm. The applicant argues that Mr. Pereira took no steps to assess the account, and that the Estate is out of time for requesting an assessment. Alternatively, the applicant seeks payment from the Azevedo Firm itself on the basis that Mr. Azevedo gave a personal undertaking to protect the account.

[27] The Estate argues that the applicant does not have standing to seek payment of the account as the applicant is a dissolved partnership. Alternatively, the Estate argues that the limitation period precludes the applicant from seeking payment of the amount at issue and, furthermore, that the undertaking was given by the Azevedo Firm and not by Mr. Pereira.

[28] The Azevedo Firm disputes that it gave a personal undertaking. Otherwise, it does not take a position on whether the funds should be paid to the applicant or the Estate.

Issues and Analysis

[29] This application raises the following issues:

a. Is the Azevedo Firm's undertaking binding on the Estate?

b. Is the applicant's claim statute barred?

c. Are there special circumstances warranting an assessment?

d. Does the applicant have standing to claim the moneys held in trust?

Undertaking given by the Azevedo Firm

[30] The applicant and the Estate argue that Mr. Azevedo gave a personal undertaking to protect the applicant’s account. In making this argument, they rely on the decision in Thomas Gold Pettinghill LLP v. Ani-Wall Concrete Forming Inc., 2012 ONSC 2182 (Sup. Ct.), wherein the Court held that lawyers may be personally bound by undertakings in circumstances where the undertaking is given personally without a client's instructions.

[31] In Thomas Gold Pettinghill LLP, at para. 45, Perell J. of this Court described two types of lawyers’ undertakings:

Lawyer's undertakings are of two types. The first type of undertaking is an undertaking given by the lawyer acting as an agent of his or her client; the lawyer makes it clear that the principal, i.e. the client, is the party responsible for the satisfaction of the undertaking. This type of undertaking does not expose the lawyer to liability: Re Jost and Solicitors (1978), 7 C.P.C. 303 (N.S.S.C.); Wakefield v. Duckworth & Co., [1915] 1 K.B. 218 The second type of undertaking, which does expose the lawyer to liability, is the personal undertaking of the lawyer acting in his or her professional capacity as a lawyer.

[32] In this case, based on Mr. Azevedo's evidence, I am satisfied that he did not give a personal undertaking but that he gave the undertaking on his client's behalf. While Mr. Azevedo does not have any direct recollection of his conversation with Mr. Pereira, his affidavit clearly describes his normal practice. The applicant and the Estate do not have any evidence to contradict Mr. Azevedo’s evidence. In my view, his evidence that the undertaking was given on Mr. Pereira’s instructions is bolstered by the fact that, once the settlement funds were received, Mr. Pereira accepted that the Azevedo Firm would hold $32,100 of the settlement funds in trust while Mr. Pereira retained a different law firm to assess the Lofranco Firm’s account. In other words, there is no evidence that Mr. Pereira ever disputed that the Azevedo Firm had authority to hold the money in trust pending the resolution of the fee dispute.

[33] In any event, the Azevedo Firm did not breach its undertaking. It undertook to protect the Lofranco's "reasonable account", subject to Mr. Pereira's right to assess the account. When the settlement funds were received, the Azevedo Firm obtained instructions to hold the funds in trust, thereby "protecting" the account. The Azevedo Firm took a number of steps to notify the Lofranco Firm that it held the money in trust and to facilitate the resolution of the account issue, such as requesting dockets and notifying the Lofranco Firm that Mr. Pereira intended to retain separate counsel for the assessment. Finally, the Azevedo Firm has continued to hold the funds in trust, and there is no reason to believe that it will not continue do so until the completion of these proceedings.

[34] The consequence of this finding is that the dispute is really between the Lofranco Firm and the Estate, and the key issue on this application is which of these two parties is entitled to payment of the moneys held in trust by the Azevedo Firm. I see no basis for making the Azevedo Firm responsible for paying anything to either party beyond the moneys held in trust.

Limitation Period

[35] Both the applicant and the Estate argue that the limitation period is a bar to the other party's claim to the funds.

[36] The Estate relies on the two year limitation period in section 4 of the Limitations Act, 2002, S.O. 2002, c.24, which provides that:

Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[37] Section 5 of the Limitations Act, 2002, addresses the issue of when a claim is "discovered":

(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[38] The Estate argues that the limitation period started to run when Mr. Lofranco became aware of the settlement, which it claims was in 2006 at the time of the settlement.

[39] The applicant argues that no limitation period applies to its claim that it is entitled to the money, and, in any event, it argues that it only became aware of the settlement in June 2015, less than two years before commencing the application. In addition, the applicant argues that the limitation period runs against the Estate because it failed to seek an assessment of the account in accordance with the timelines set by section 4(1) of the Solicitor's Act, which provides that a solicitor’s account cannot be referred for assessment “after twelve months from the time such bill was delivered, sent or left as aforesaid, except under special circumstances to be proved to the satisfaction of the court or judge to whom the application for the reference is made”.

[40] In my view, it is not open to the Estate to argue that the limitation period runs against the applicant. Given my finding that there was a valid undertaking given on behalf of Mr. Pereira, as recently discussed by Quigley J. in Cozzi, at para. 62, the limitation period stops running once the undertaking is given, unless the undertaking is revoked:

63 First, Mr. Cozzi tries to counter that proposition by noting that Kilian D.J. correctly adopted the law that a personal undertaking from a solicitor is not discharged by notification. I agree. Moreover, I agree with the appellant on the general proposition that a solicitor's undertaking and a client's undertaking will continue to be enforceable without the interference of a limitation period: Sokoloff v. Mahoney. The Deputy Judge specifically recognized this in para. 17 when he quoted from para. 15 of Sokoloff as follows:

15 There is also clear case law that a solicitor's undertaking as well as a client's undertaking is enforceable, can be relied upon, and stops the clock running for the purpose of a limitation defence unless revoked. In Tembec Industries Inc. v. Lumberman's Underwriting Alliance, (2001) 2001 CanLII 28252 (ON SC), 52 O.R. (3d) 334, [2001] O.J. No. 72 at paras 21-22, Ground J. held that an undertaking to pay a specified amount in damages gives rise to promissory estoppel where the recipient of the undertaking relied on it. Such reliance is expressly contemplated by a solicitor who gives an undertaking, as Wilton-Siegel J. held in Bogoroch & Associates v. Sternberg, [2005] O.J. No. 2522 at para 38.

[41] In this case, there is no evidence that Mr. Pereira ever revoked the undertaking. At most, it became evident that the Estate did not intend to comply with the undertaking only when the parties were unable to resolve the issues, after which the application was commenced.

[42] Another basis on which I would find that the limitation period does not run against the applicant is the nature of its interest in the funds held by the Azevedo Firm. In Thomas Gold Pettinghill LLP, at paras. 88 and 89. Perell J. explained that, besides charging orders that can be made under the Solicitor’s Act, the Court has inherent jurisdiction “to charge assets recovered or preserved through the instrumentality of a lawyer for a client”.

[43] Perell J. also noted, at para. 101, that, in circumstances where the Court is satisfied that the preconditions are met for a charging lien, the limitation periods in the Limitations Act, 2002, do not apply:

For present purposes, the three points to note from Justice Henry's decision in Re Tots and Teens Sault Ste. Marie about a charging lien made under the court's inherent jurisdiction are: first, the charging lien creates the proprietary interest of a secured creditor; second, subject to being declared, the charging lien is an inchoate interest that pre-dates the court's declaration; and third, the charging lien is intrinsically declaratory in nature. The last point supports Cassel Brock's argument that a charging lien comes within s. 16 (1) (a) of the Limitations Act, 2002 and is not subject to any limitation period.

[44] I am satisfied that the applicant is entitled to a charging lien. In Thomas Gold Pettinghill LLP, at para. 88, Perell J. explained that the preconditions for a charging lien are that “(a) the fund, or property, is in existence at the time the order is granted; (b) the property was recovered or preserved through the instrumentality of the lawyer; and (c) there must be some evidence that the client cannot or will not pay the lawyer’s fees”.

[45] In this case:

(a) the funds held in trust by the Azevedo constitute the fund;

(b) the Lofranco Firm did some work on Mr. Pereira’s file. While there is a dispute about the extent of the work done, there is no dispute that the firm was involved in moving the matter forward; and

(c) It is evident from the position taken by the Estate on this application that it will not agree to pay the fees claimed by the Lofranco Firm.

[46] Looking at the matter from a different perspective, both the Solicitor’s Act and the common law provide special protection to lawyers in recovering their fees in circumstances in which a plaintiff is successful, either through a settlement or by obtaining judgment. The undertaking Mr. Azevedo gave on Mr. Pereira’s behalf and the fact that Mr. Pereira consented to the money being held in trust by the Azevedo Firm once settlement was reached, in my view, constitute an acknowledgement by Mr. Pereira that he understood the Lofranco Firm’s proprietary interest in the funds. However, as discussed below, given that the undertaking was subject to the fees being reasonable and Mr. Pereira’s ability to assess the account, the issue remains whether the applicant is entitled to payment of its full account or whether the Estate is entitled to assess the account.

Special circumstances warranting an assessment

[47] The applicant argues that it is entitled to payment of the full amount of its account because it is too late for the Estate to seek an assessment.

[48] As reviewed above, section 4(1) of the Solicitor’s Act provides that a lawyer’s account is to be referred for assessment within 12 months of when it was rendered unless the Court is satisfied that there are special circumstances.

[49] In Thomas Gold Pettinghill LLP, at paras. 77 to 80, Perell J. reviewed the principles applicable to the Court’s jurisdiction to decide that there are special circumstances:

77 In Guillemette v. Doucet, supra at para. 35, the Court of Appeal held that a superior court has an inherent jurisdiction to review lawyers' accounts entirely apart from any statutory authority and that inherent jurisdiction is not subject to a time limit.

78 "Special circumstances" includes any circumstances of an exceptional nature affecting the matter of costs or the liability of a client that a judge, in the exercise of his or her judicial discretion in each particular case, may consider to justify an assessment of the account: Glanc v. O'Donohue & O'Donohue, 2008 ONCA 395, [2008] O.J. No. 1946 (C.A.); Rooney v. Jasinski, 1952 CanLII 115 (ON CA), [1952] O.J. No. 426 (C.A.); Minkarious v. Abraham, Duggan, 1995 CanLII 7253 (ON SC), [1995] O.J. No. 3494 (Gen. Div.); Plazavest Financial Corp. v. National Bank of Canada, 2000 CanLII 5704 (ON CA), [2000] O.J. No. 1102 (C.A.); Ling v. Naylor, [1998] O.J. No. 5263 (Gen. Div.).

79 In determining whether there are special circumstances, the court exercises a broad discretion to be exercised on a case-by-case basis and with an eye to all of the relevant circumstances: Plazavest Financial Corp. v. National Bank of Canada, supra; Guillemette v. Doucet, supra; Minkarious v. Abraham, Duggan, supra.

80 Special circumstances is a fact-specific inquiry, but the starting point is the perspective of the client, and public confidence in the administration of justice requires the court to intervene where necessary to protect the client's right to a fair procedure for assessment of a solicitor's bill: Echo Energy v. Lenczner Slaght Royce Smith Griffin LLP, 2010 ONCA 709 at para. 36; Andrew Feldstein & Associates Professional Corp. v. Keramidopulos, [2007] O.J. No. 3683 at para. 63 (S.C.J.); Price v. Sonsini, 2002 CanLII 41996 (ON CA), [2002] O.J. No. 2607 (C.A.).

[50] In Thomas Gold Pettinghill LLP, Perell J. ultimately found that there were special circumstances, noting at para. 120, that it “is commonly the case that a charging order is coupled with an assessment of the lawyer’s account”.

[51] In my view, in this case, there are also special circumstances warranting the assessment of the account.

[52] It was made clear to the Lofranco Firm from the outset that its account would be protected, but that this undertaking was subject to the fees being reasonable and Mr. Pereira’s ability to assess the account. When the account was sent to the Azevedo Firm after the settlement, concerns were immediately raised about the amounts charged for certain services, and the Azevedo firm requested dockets. Accordingly, it was made evident from the outset to the applicant that Mr. Pereira reserved the right to challenge the account and, once the account was rendered, that he took issue with the amounts charged.

[53] The applicant argues that, while Mr. Pereira intended to seek an assessment, his delay in doing so should militate against finding special circumstances. It is unfortunate that the record before me does not present any evidence of why the assessment did not proceed. The Estate has not provided evidence about why Mr. Pereira did not pursue an assessment. However, while the applicant was clearly on notice that Mr. Pereira intended to assess its account, it has not put forward any evidence of attempts it made to move forward with the assessment or any communications with the lawyer Mr. Pereira had retained aimed at facilitating the assessment.

[54] In my view, the applicant is equally responsible for any delay in this case. In his affidavit, Mr. Lofranco states that the first time the Lofranco Firm received notice of the settlement of Mr. Pereira’s claim was on June 9, 2015, when William Pereira contacted the Lofranco Firm. However, at the beginning of his affidavit, Mr. Lofranco states that his affidavit is based on his review of the file unless he indicates otherwise. Accordingly, he does not appear to have any direct knowledge or recollection of many of the events involving the handling of Mr. Pereira’s file and the subsequent handover to the Azedevo Firm. In fact, as indicated above, it appears that the file was primarily handled by Mr. Solomon, who was an associate at the firm, and that many of the communications with the Azevedo Firm were with Mr. Solomon.

[55] In contrast to Mr. Lofranco’s evidence, the evidence of the respondents makes clear that the Lofranco Firm was most likely aware of the settlement in late March 2006 or early April 2006, which is around the time the settlement was reached. The Azevedo Firm received the fee account on March 28, 2006, which would suggest that it was requested from the Lofranco Firm to ascertain the quantum of funds to be held in trust. Following receipt of the settlement funds, the Azevedo Firm obtained instructions from Mr. Pereira to hold $32,100.00 in trust. Around the same time, the Azevedo Firm sent a cheque to the Lofranco Firm to pay the $2,330.71 disbursement account and sent correspondence raising issues with the quantum of the fee account, requesting dockets and advising that Mr. Pereira intended to assess the fees account. Soon thereafter, there is direct communication between Mr. Solomon and Mr. Bufton, who had been retained by Mr. Pereira to assess the account, about the issues with the account and raising the possibility of resolution. While Mr. Lofranco may not have any recollection of being advised of the settlement at that time or he may not have known about it, in my view it is clear from the communications between the parties in this time period that the Lofranco Firm was aware in late March or early April 2006 that the Azevedo Firm had received the funds from the settlement. Otherwise, there is no explanation for the payment of the disbursements and the communications regarding the account and assessment at that time.

[56] In my view, based on my review of the parties’ conduct, delay in this case is a neutral factor. There has been significant delay attributable to all parties. It is evident that Mr. Pereira intended to assess the account, but it is not evident what if any steps he took to do so. The Lofranco Firm took absolutely no steps to recover the funds, even ignoring several inquiries from the Estate and the Azevedo Firm in 2014. The first step taken was the demand for payment in 2015, which is 9 years after it became aware that the matter had been settled. Under these circumstances, while it is unfortunate that the matter was left to languish for so long, it would not be fair to preclude the assessment from going forward due to Mr. Pereira’s delay when the Lofranco Firm showed no apparent interest in getting the account paid until recently.

[57] Finally, in my view the most significant special circumstance is that it is clear from my review of the account and the evidence in this matter, that the applicant seeks payment for at least some services it very likely did not perform. The only evidence from the applicant is an account that generically, and with no particularity, lists the services provided as follows:

CLIENT/SOLICITOR FEE ACCOUNT

FOR SERVICES RENDERED IN RESPECT OF YOUR CLAIM FOR STATUTORY ACCIDENT BENEFITS AND THE TORT ACTION;

FOR ALL COMMUNICATIONS WITH ADJUSTERS AND LAWYERS;

FOR ALL COMMUNICATIONS WITH YOURSELF;

FOR OBTAINING MEDICAL DOCUMENTATION IN SUPPORT OF YOUR CLAIMS;

IN OBTAINING FINANCIAL DOCUMENTATION IN SUPPORT OF YOUR CLAIMS;

FOR ATTENDING EXAMINATIONS FOR DISCOVERY;

FOR ATTENDING MOTIONS;

FOR PREPARATION OF PLEADINGS;

IN CONDUCTING SETTLEMENT NEGOTIATIONS;

[58] The account then concludes that the fees owed are $30,000 plus $2,100 for GST. No dockets have been provided and, in his affidavit, Mr. Lofranco gives no information about services provided to Mr. Pereira beyond repetition of the contents of the affidavit. The only particularized evidence can be gleaned from the disbursements accounts that make reference to payments for medical records amongst other items. In contrast, the Azevedo Firm points out that the Lofranco Firm could not have conducted discoveries as it did so after it was retained. I also note that the Lofranco Firm did not initiate the claim, thereby casting some doubt on the reference to the preparation of pleadings.

[59] In my view, this is precisely the type of circumstance in which the Court’s inherent power to order an assessment is warranted. While it would have been preferable for Mr. Pereira to move expeditiously with an assessment after the settlement, the applicant should not be able to retrieve the full amount of its account without further scrutiny. As referred to above, one of the rationales for the Court’s inherent power to refer lawyer’s accounts for assessment is the need to ensure the public’s confidence in the legal system. Based on the record before me, I cannot determine what specific services the Lofranco firm provided and the value of those services, and accordingly I find that there are special circumstances warranting an assessment.

Standing of the applicant

[60] The Estate argues that the Lofranco firm does not have standing on this application because it is a dissolved partnership. In my view, this is only a technical defect as Mr. Lofranco could have brought the application in his own name given that he was a partner of the dissolved partnership: Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2003 CanLII 38170 (ON SCDC), [2003] O.J. No. 2069 (Div. Ct.), at para. 24.

[61] Accordingly, for the purposes of the judgment arising from these reasons, I grant leave to the applicant to amend the style of cause to substitute Mr. Lofranco for the current applicant.

Conclusion

[62] For the reasons given above, I make a declaration that the applicant is entitled to payment of its account out of the funds held in trust by the Azavedo Firm, subject to the Estate’s right to assess the account before it is paid. If the Estate chooses to request an assessment, the request is to be made within 30 days from the release of this decision.

[63] I do note that nothing in these reasons precludes the parties from reaching agreement on the amount to be paid to the applicant. Doing so will avoid further delay and expense to the parties, especially given the amount at issue.

[64] I also encourage the parties to reach agreement on the issue of costs. If they are not able to do so, the applicant is to deliver cost submissions not exceeded three pages within 10 days of today’s decision, and the respondents are to deliver their cost submissions not exceeding three pages 10 days thereafter.

FAVREAU J.

Date: